Edward J. Naughton, an IP attorney and partner at the international law firm Brown Rudnick, building on the work of Ray Nimmer, a copyright law professor at the University of Houston Law Center, claimed that when Google built Android around Linux and its GNU General Public License version 2 (GPLv2), that "a key component of Android--the Bionic Library [which] is used by all application developers who need to access the core functions of the Linux operating system. Google essentially copied hundreds of files of Linux code that were never meant to be used as is by application developers, 'cleaned' those files using a non-standard and questionable technical process, and then declared that the code was no longer subject to the GPLv2, so that developers could use it without becoming subject to copyleft effect that would normally apply to GPLv2-licensed code taken from the Linux kernel."

Thus, Naughton stated, "I have serious doubts that Google's approach to the Bionic Library works under U.S. copyright law. At a minimum, Google has taken a significant gamble. While that may be fine for Google, because it knows about and understands the risks, many Android developers and device manufacturers are taking that same risk unknowingly. If Google is wrong, the repercussions are significant for the Android ecosystem: the manufacturers and developers working with Android would be incorporating GPLv2-licensed code into applications and components and taking on the copyleft obligations of that license."

He concluded, "What is potentially even more interesting is what happens if Google is right. If that is the case, Google has found a way to take Linux away from the open source community and privatize it. Perhaps the community believes it can rely on Google to "do no evil" with that kind of power, but can it rely on others to be so magnanimous?" Naughton furthers his argument in a more detailed legal analysis of Android's Bionic library (PDF Link).

I asked Google for their response to this claim, but they haven't gotten back to me, so I did some digging of my own. Now, I am not a lawyer, but Naughton is talking largely about the Linux kernel header files, and back in the days when SCO was fighting with IBM over Linux's copyrights, the issue of header files came up. At the time, Eric Raymond, then president of the Open Source Initiative (OSI), told me there was a good reason why Unix and Linux's header files looked the same: "Do you know that there is not one bit of executable code in those files? They're pretty much all macros and declarations forced by POSIX and other technical standards." Linus Torvalds also told me at the time that much of the material in the header files was there "because that's specified by several standards, not Unix per se-you'll find those error names in any operating system that has a C compiler."

Can such standards defined files be copyrighted? IBM argued in its case against SCO that the Unix and Linux header files couldn't be copyrighted because of these issues. In the event, it was proved that Novell, and not SCO, owned Unix's copyrights and that issue, to the best of my knowledge, was never settled. Still, speaking for myself, it seems unlikely there's any danger to Android or Android programmers from Linux header file copyrights.

Eben Moglen, the Columbia University law professor who knows more about the GPL and IP law when he's asleep, then I ever when I'm wide-awake on my best day, told me, "I would say that the issue is a little less complex and a little less dire than it might seem on first acquaintance, while the facts are not quite as simple and therefore the narrative not quite as compelling as one might be led to believe."